Supreme Court decisions provide mixed bag for free speech

Tuesday, June 26, 2001

Yesterday was a mixed day for the free-speech clause of the First Amendment at the Supreme Court, with the justices interpreting it narrowly in the context of campaign-finance reform but more broadly in a case involving commercial speech.

The decisions were among the final First Amendment cases on the court’s docket for the term. The justices still must rule in the combined free-speech cases Lorillard Tobacco Co. v. Reilly, and Altadis U.S.A. Inc. v. Reilly. That decision will be announced with the rest of the court’s opinions on June 28. After the traditional summer break, the court will return to the bench on Oct. 1, the legendary First Monday in October.

Of the two First Amendment decisions handed down yesterday, the campaign-reform case is the headliner, representing the court’s latest attempt to define the relationship between the First Amendment and money donated and spent on political campaigns. The two sides in the current campaign-finance reform debate before Congress differed sharply yesterday in interpreting the decision’s impact.

In the 1976 case Buckley v. Valeo, the court said the First Amendment prevents government from limiting campaign expenditures, but allows limits to be placed on contributions to candidates. In yesterday’s decision in Federal Election Commission v. Colorado Republican Federal Campaign Committee, a slim 5-4 majority upheld a provision of the federal campaign law that limits the amount of money political parties may spend in coordination with their candidates for public office. Even though parties argued that this type of hard-money spending is an expenditure that could not be limited under Buckley v. Valeo, Justice David Souter, writing for the majority, likened it to a contribution to a candidate that may be limited under Buckley.

“Parties … perform functions more complex than simply electing candidates,” Souter wrote. “Whether they like it or not, they act as agents for spending on behalf of those who seek to produce obligated officeholders. It is this party role, which functionally unites parties with other self-interested political actors, that the Party Expenditure Provision targets. This party role, accordingly, provides good reason to view limits on coordinated spending by parties through the same lens applied to such spending by donors, like PACs, that can use parties as conduits for contributions meant to place candidates under obligation.”

Souter also said that political parties “function for the benefit of donors whose object is to place candidates under obligation, a fact that parties cannot escape. Indeed, parties’ capacity to concentrate power to elect is the very capacity that apparently opens them to exploitation as channels for circumventing contribution and coordinated spending limits binding on other political players.”

Souter’s remarkably dark view of politics and political parties led the court to agree that in the name of reducing political corruption, party spending may be limited. He argued that if the limit on coordinated spending were lifted, donors seeking to improperly influence candidates would circumvent contribution limits by funneling their money, without limits, to political parties.

The corruption rationale as a justification for limiting speech was a cornerstone of Buckley v. Valeo, so the court’s ruling yesterday represents a major endorsement of the Buckley framework. Supporters of the McCain-Feingold campaign-finance bill said the court’s endorsement of Buckley would boost the chances that the bill, already passed by the Senate but pending before the House of Representatives, would pass constitutional muster.

“The Supreme Court ruled that money funneled into political parties can be as corrupting as money put directly in the pockets of candidates,” said E. Joshua Rosenkranz, president of the Brennan Center for Justice, which favors McCain-Feingold. “The very same reasoning applies to a ban on unregulated soft money.”

Common Cause president Scott Harshbarger also said, “The same reasoning the court used to sustain the party limits today will also sustain a ban on soft money. The court gets it.”

But those who oppose limits on party spending say yesterday’s decision does not forecast how the high court would rule on unregulated soft-money contributions to parties.

“Today’s decision says nothing about soft money or about the unconstitutional issue-advocacy restrictions that the Senate included in the McCain-Feingold bill, such as the ban on corporate and union contributions to parties,” said Laura Murphy of the American Civil Liberties Union.

Opponents of campaign restrictions took some solace from the dissent authored by Justice Clarence Thomas, who said explicitly that Buckley v. Valeo should be overruled. He was joined by Justices Antonin Scalia and Anthony Kennedy. Chief Justice William Rehnquist dissented from the majority on other grounds, but did not join Thomas’s anti-Buckley view.

“I remain baffled that this Court has extended the most generous First Amendment safeguards to filing lawsuits, wearing profane jackets, and exhibiting drive-in movies with nudity,” wrote Thomas, “but has offered only tepid protection to the core speech and associational rights that our Founders sought to defend.” He also said that the coordinated expenditures at issue should be treated the same way as independent party expenditures, which the court said could not be restricted at an earlier stage of the Colorado Republican litigation.

The other First Amendment case decided yesterday was U.S. v. United Foods, Inc., a challenge to a federal program that requires mushroom growers to fund promotional advertising for the industry. A Tennessee mushroom company objected to the mandatory fee as a violation of its free-speech rights because it forced the company to support ads with which it disagreed. The company protested that the ads linked mushrooms to alcohol consumption and portrayed them as an aphrodisiac. United Foods also believed that its mushrooms were superior to others, while the promotional program suggested that all mushrooms were uniformly good.

In a decision authored by Justice Anthony Kennedy, the court sided with the company and struck down the federal program. Kennedy reiterated the court’s long-held view on compelled speech: “Just as the First Amendment may prevent the government from prohibiting speech, the Amendment may prevent the government from compelling individuals to express certain views.” Even when those views concern relatively “minor” concerns such as the qualities of mushrooms, Kennedy said, the First Amendment is violated.

The majority also said the mushroom program was unlike the California fruit promotion program that the court upheld four years ago in Glickman v. Wileman Brothers & Elliott. That program was challenged on similar grounds, but the court said it did not violate the First Amendment. Kennedy said yesterday that the California fruit ads were part of a comprehensive regulatory scheme covering the fruit industry, whereas the mushroom program was dominated by the advertising campaign.

Justices Stephen Breyer and Sandra Day O’Connor dissented, arguing that the mushroom program was identical to the fruit program in all important respects. Breyer also said the First Amendment was not at issue in the case. “It is important to understand that the regulatory program before us is a species of economic regulation which does not warrant special First Amendment scrutiny,” Breyer wrote, in a section of the dissent that O’Connor did not join. “The program does not significantly interfere with protected speech interests. It does not compel speech itself; it compels the payment of money. Money and speech are not identical.”

Breyer also saw a danger in the majority opinion to programs that might be contested in the future. The ruling, he said, “suggests, perhaps requires, striking down any similar program that, for example, would require tobacco companies to contribute to an industry fund for advertising the harms of smoking or would use a portion of museum entry charges for a citywide campaign to promote the value of art.”

But those who supported the United Foods challenge said yesterday’s decision was good for free speech.

“The court’s decision in this case could have a widespread impact,” said Scott Bullock of Institute for Justice, a public-interest law firm that challenges economic regulations and filed a brief in the case. “Federal and state governments currently require agricultural producers to fund dozens of generic advertising campaigns worth hundreds of millions of dollars a year. The most well-known ongoing campaign is the dairy industry’s ‘Got Milk’ promotion. This case will likely bring new challenges to several of these programs.”

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